Senate plays bush league on Leonard

It’s really difficult to square the Senate Judiciary Committee’s rejection of Katherine Leonard for chief justice of the state Supreme Court with Senate Resolution 26 passed earlier this year criticizing Gov. Linda Lingle for not appointing enough women judges and urging her to appoint more.

Relevant passages of SR 26 that received unanimous support from the 23 Senate Democrats on April 7 after being approved by the Judiciary Committee:

WHEREAS, of the twenty-two judicial appointments made by Governor Lingle, only six have been women …

WHEREAS, the Legislature finds that the appointment of women judges is important, because of the benefit of their life experiences. Judges, and especially appellate judges, (emphasis mine) often have discretion in deciding cases. How this discretion is exercised is often a product of the judges’ life experiences and values; this is undeniably so for many decisions, and especially at the appellate level (emphasis mine) …

WHEREAS, bias, or even the appearance of bias, against women undermines the integrity of the judicial system …

WHEREAS, with more women as judges, the public at large would see the justice system as more representative of diversity and, presumably, more fair …

WHEREAS, the Legislature further finds that appointing women to the bench serves to provide male judges and attorneys with a different perspective, in the course of collegial discourse within community and bar interactions …

BE IT RESOLVED by the Senate of the Twenty-fifth Legislature of the State of Hawaii … that Governor Lingle is strongly urged to use and consider gender equality when appointing judges and justices (emphasis mine) in the future …

Leonard was the only woman on the list of carefully vetted and qualified candidates sent to Lingle by the Judicial Selection Commission, of which two of the nine members were appointed by Senate President Colleen Hanabusa and two more by the bar association.

Now some of the senators who so piously lectured Lingle on April 7 are touting any of the men on the list as more qualified than the woman she appointed in line with their clearly expressed wishes.

Critics have cited no objective standards by which Leonard is unqualified, just the usual subjective putdowns about “temperament,” “gravitas” and “leadership” that have always been hurled at women as they attempt to rise.

Senators ignored men and women attorneys of proven “gravitas” from across the legal spectrum who have vouched in specific ways for Leonard’s leadership, experience and legal mind, choosing to listen only to the politically convenient generalizations of a few — including anonymous bar association directors who won’t even disclose their reasons for recommending against Leonard.

Opponents have not cited a single specific thing of any significance that Leonard has done wrong other than being the appointee of the Republican governor whom Democratic senators love to hate.

First senators try to embarrass Lingle by criticizing her for not appointing enough women judges, then they try to embarrass her by rejecting the most prominent woman she does appoint.

Shame on them for polluting our Judiciary with their bush league politics.

Charles, what you’re missing is that they haven’t cited a single specific way she doesn’t meet the criteria in that resolution. What you’re missing is that the JDC does’t recommend just ANY woman and that the highly respected lawyers who have vouched for her don’t do so for just ANY woman. Klein, Hifo, Tonaki, Soifer, etc. aren’t the ones with suspect political motivations. Sorry, but nobody but the faithful is buying the spin.

@hipoli I’m sorry you think it’s OK for an honest citizen to be rendered political roadkill and we should just move on and do it again to somebody else.

@Peter Except for Clayton Hee — and I give him a lot of credit for being the only one to state a specific, objective reason for opposing her — I don’t think it was about ideology. Even if Lingle was inclined to move the court sharply to the right, which she isn’t, she has only two of the nine appointments on the Judicial Selection Commission. The other seven appointed by the Senate president, House Speaker, bar association and chief justice all are center to left and would never let a strongly rightward leaning candidate through — and rightly so in this state. The fact that the JDC found Leonard qualified tells you that she’s ideologically center to left as Galuteria said in the floor debate.

I don’t think the Democrats saw her as an ideological threat so much as a threat to the cozy patronage system the Judiciary has always been a part of. Read “Broken Trust” if you want to see how “independently” CJ Moon led the court in this regard.

The blustering about administrative and leadership experience was BS to cover the politics. No working attorney has experience running an organization as large as the state Judiciary, although I guess Recktenwald comes close having run DCCA and the ICA. But in terms of Hawai’i’s previous CJs, Leonard’s administrative experience is roughly equivalent to most and she was clearly held to a higher standard than the men who went before her in this area.

I dont think its ok, Dave. I also dont think its ok for this Gov to have put up this poor woman through all this without even slightly testing the winds about this nominee. If Gov had, perhaps she could have anticipated, at least been a bit warned, about this response and perhaps spared Ms. Leonard this bullshit. But given her past nominees and their luck with the Legislature, it seems this Gov is too hard headed to learn her lesson.

That said, it is what it is. And now its done. We now move on to the next nominee, a likely similarly, equally decent, intelligent, servant of the public, who I have been joking will be the next victim of this political nonsense, but you also know Im not really joking.

Dave, you are always moaning about political motivations when it comes to politics (which is some sort of Greek word for public policy). Lingle is entitled to her motives as are the Bar Association and the Senate (it just happens that both the Bar and the Senate are full of lawyers). Maybe you outsiders should attack the process from a conflict of interest view.

I see you are tightly in the grip of your own interpretation of what is happening with the Leonard nomination. But look at your posting here. Do you REALLY want to say the Senators who voted FOR the reso calling for more women judges are then obliged to support any particular nominee simply because she is a woman? I think Charles had exactly the right response to you and I suggest you should reflect upon his comments as he is more worthy of consideration than I am.

You have already made it clear you are unwilling to even entertain the idea that the anonymity in the HSBA process might have SOME valid purpose. And now you are grumbling because the reasons for the Senate’s rejection seem to be hidden within vague terminology: “temperament,” “lack of administrative experience,” yada, yada.

I have read through the comments on the Disqus discussion boards accompanying the articles. It is painful to do. There is so much cr@p posted there and so much unsupported rumor. So one has to filter the information and even then, take it with a grain of salt.

A picture emerges, and I would hope you would be able to SIMULTANEOUSLY entertain the possibility that Leonard has severely impaired people skills WHILE ALSO lamenting the inability of the confirmation process to deal fairly with such reports.

Should unsupported rumors be allowed to derail a judicial appointment? How do we guard against unfair “character assassination” under the circumstances?

Let me suggest the posibility that the HSBA’s Board of Directors received numerous reports of this sort, that they became convinced there was a credible basis for these reports, painting a portrait of a brilliant legal mind who treats her subordinates terribly. And that they decided such a personality might well make a good judge, but a lousy Chief justice.

Like you, I am not comfortable with a judicial confirmation system which does not provide a nominee a chance to respond to such anonymous rumors. It strikes me as unfair. I do not know, and I doubt if you know, whether these sort of criticisms were raised directly with Leonard during her interview with the HSBA Board. If they had these concerns, I would hope they did raise them and listen to her response.

I expect the Senators received similar reports about Leonard’s allegedly difficult personality. Perhaps some directly from people who had had bad experiences. What would be the best way for them to proceed? It is easy to say they should have brought in people to tell their specific stories of personal conflict with Leonard and then allowed Leonard to respond “to her accusers” in public. But if the Senators heard enough testimony to convince them of this view of Leonard’s weaknesses, I can understand they might want to avoid having all this stuff aired publicly. You might be right that it did not rise to your standards for a “fair and open hearing,” but if their minds were alreaady made up, it may have spared the nominee and the senate a very bitter, very nasty fight which would have damaged Leonard’s reputation and career a helluva lot more than hiding their concerns in the more vague statements about “temperament” and “administrative skills.”

You may want to sidestep what I am suggesting here by dismissing it as unfounded speculation or even as yet another form of “character assassination” of Leonard. But I think it is consistent with what little information I have been able to glean and explains the flickering shadows on the cave wall better than your emotional outbursts.

I can appreciate if my explanation is unsatisfactory to you. I sincerely share your concerns about “due process”, including the right to face one’s accusers. I only ask that you set aside your anger long enough to reflect that maybe, just maybe, the HSBA and the Senators are not as petty and as ignoble as you seem to want to paint them. Even if you still end up disagreeing with their logic and behavior.

After 8 years in office, people finally finding out that lingle is a woman.

Doesn’t say much, but her legacy stands that in those 8 years, she has learned to play the Violin and recent fires on each Island, Hawaii is burning.

Her appointment of leonard is questionable since lingle herself is doubtfull and cannot make decisions on her on and need the public to vote. By this alone lingle is not qualified to pick anyone, man or woman.

her decisions is under the microscope by Senate and a word saying to lingle, You are not welcomed in the Senate if you do run for office in 2012. lingle has yet to be accepted by the republican party as well.
If she is accepted, she is not popular.
neither is palin. her being contrary is part of a reason I see, her choice was shot down.

Geez, Kolea, the anonymous “dragon lady” attack is the oldest trick in the book for bringing down an “uppity” woman. Your validation of the innuendo and suggestion that they did the po’ li’l thing some kind of favor by not making her address the rumors in public is an insult to anybody who values fairness and equality. Brickwood Galuteria was the only senator who raised the “dragon lady” issue in public debate, and he said that after looking into it he didn’t find the rumors credible.

I have no personal rooting interest in Leonard; Recktenwald and Foley would be fine with me and probably others on the list if I knew them better. But the objective evidence on the public record says she was qualified and it saddens me that women still have to put up with such crap in this day and age — especially when it’s partly at the hands of other women.

and a Democratic governor nominated Leonard to be the first CJ in state history…

and the Senate knocked that candidate down…

none of the apologists for the senate here would be taking the same position.

Dave’s arguments are dead on. Leonard was not picked out of thin air. The selection committee gave her a list of vetted candidates. She (Leonard) had strong support from highly qualified and knowledgable individuals. This was nothing more than bush league.

Finally got the answer to my question(s) I asked the other day concerning Mark Recktenwald: The corret spelling of his last name and the reasoning behind the decision by DaGov not to nominate him for the Chief Justice position.

As for those who take the position that all women should support any woman running for office or being voted on to head an agency or department or, in this case, as Chief Justice, that’s not what I would ever do.

Taking this position is not something new in local politics – recently, I saw three women voters who are actively involved in women’s issues pubicly challenged at a community meeting for supporting a male candidate over a female candidate.

I know nothing about the rejected nominee nor do I have much first-hand knowledge about the HSBA in general – and not much more than a casual observer’s experience about its recommendation process. Still, I give their board some credence for what they did.

Come December 6, 2010, no matter who is sworn in that day as DaGov, Lingle’s finerprints will still be visible for at least four more years on just about every aspect of state government.

Think this episode is bad – just wait to see what happens to the Department of Education if the proposed Constitutional Amendment passes – especially if the legislation to modify the Governor’s politcal influence in appointing the Board of Education is not passed next Session.

NOTE: The legislation setting up a nominating process similar to one used for Board of Regents nominees would have been part of the veto over-ride package had Speaker Say agreed to call a Special Session in July.

Cap, I certainly wouldn’t suggest that all women should support any woman. I just have trouble mustering respect for women being party to using “dragon lady” innuendo to take down another woman. They could have blown the whistle on the sleazy tactics and still opposed the nomination.

When/where was this term used and by whom. On the Senate floor, in the Judiciary Committee, in written public statements or letters, on blogs or in opinion pieces or newstory comment sections? I did not hear or read about this until the latter posts here on this blog. All I had heard or read prior to the decision-making was that the nominee lacked administrative experience – however that is defined.

I am very interested in knowing more about the process used rather than just the outcome.

BTW – I am a very strong fan of Mark Recktenwald and feel that he got snood by his former boss because he didn’t follow her orders. That cost him the nomination, but that doesn’t excuse what happened to someone else either.

I think much of the commentary on the Leonard appointment has been marred by a high level of emotionalism accompanied by a low level of actual knowledge of the procedures used by all parties in the appointment process, from the Governor, to the Judicial Selection Committee, to the HSBA Board and onto the Senators who had the final say.

I thought Dave was unusually intemperate and unfair with his refusal to recognize any basis for confidentiality in the deliberations of the HSBA. Readers interested in evaluating the HSBA process for themselves can start familiarizing themselves with that process by reading it here:

Here is an excerpt from a March 2009 Hawaii Law Review article by Steven J.T.Chow which speaks directly to one of Dave’s strongest concerns:

“In adopting this procedure to solicit comments, the Board sought to balance the need for substantive and forthright comments by the HSBA membership with the need for fairness to the appointee. Of utmost concern from the membership’s viewpoint was the need to maintain the confidentiality of the comments to avoid real or perceived retaliation by the appointee. From the appointee’s side, the Board recognized that an appointee must be protected against comments which contained bias, prejudice, speculation and rumor, which would be difficult to substantiate or rebut without more information.”

One can disagree whether the HSBA managed to strike the proper balance either in drawing up their procedures YEARS ago or in how they followed them this time. What is clear by reading the procedures they set in place is the ban on breaching the confidentiality of the information they receive and their commitment to provide the information to the nominee for review and rebuttal behind closed doors.

I believe a “reasonable person” who takes time to read the document will come to appreciate the difficulty in balancing those two imperatives. And would have an appreciation for the thankless work the HSBA took onto themselves.

If the HSBA procedures are wrong, they have publicly asked for proposed amendments. If the HSBA Board failed to follow their own procedures in the matter of the Leonard appointment, then criticize them for that. But to denounce this process as “character assassination” without bothering to read the HSBA procedures or to suggest amendments for improving them, suggests a deeply held emotional investment. If not in Leonard, then in be able to denounce “politicians” and “lawyers.” The matter of judicial appointments is worthy of temperate deliberation, not just by the lawyers and elected officials, but by INFORMED members of the public. And certainly by those who have arrived at a position in their life where they can help influence public discussion. Can we ELEVATE the discussion just a bit?

I look forward to Dave’s proposed revisions for the HSBA judicial review procedures.

Kolea, I love the accusations of emotionalism from a guy who last week told those who disagree with you on HB444 strategy to “stfu.” You know, I think I’ll borrow that to answer your question about revising HSBA procedures. If they can’t run a more transparent process and publicly explain their reasoning, what you said is exactly what they should do.

Actually, Dave. I was fully calm when I wrote that. And to be fair, it was not directed at “those who disagree with me on HB444 strategy.” I can, and often do, disagree amicably with other HB444 advocates.

My remark was aimed at a special subset of LGBT activists who lash out at particular politicians without much regard for either the accuracy of the role the politician played OR with any regard for how effective their tactics might be. In the specific case, I was talking about those who were publicly linking their complaint against Speaker Say on the residency issue with their far-fetched interpretation of his role in the defeat of HB444. And were coming on your blog to beat their chests about how righteous their cause is.

If we were to talk about specific incidences and specific individuals, I think you would concede the point. And, I expect you would even concede that their antics are doing Dwight Synan damage rather than helping him.

I know each of those people personally, so I have no reluctance to advise them to stfu (“stand tough for understanding”) when they are misbehaving.

Here’s a difference,Dave. You might not catch it, but expect others might. When I criticized those attacking Speaker Say, I actually know the people I was criticizing and have worked alongside their chief strategist for several years. On EXACTLY the issue I am now criticizing them. I understand their reasons, but have explained why I disagreed with them.

You complain the HSBA and the Senators who voted against Leonard’s nomination did not spell out specific reasons for so doing. So into that gap in your knowledge, you project your own reasons: partisan hacks, revenge, wanting to “embarrass” Lingle, etc.

If you disagree with my assessment of the Say situation, I am willing to consider your disagreements. But I suspect you broadly agree with my reasoning in that case. But when I offer a reasonable explanation for the HSBA and Senate’s rejection, you refuse to even consider the possibility my explanation explains what transpired.

Here is some hearsay, an admittedly LOW form of evidence: Last night I ran into a friend of mine. In the course of the discussion, he mentioned having been with a prominent attorney and his wife a few nights earlier. The attorney had testified in favor of Leonard, probably because of his position. The wife, in front of the husband, strongly disagreed with Leonard’s appointment, saying she was “horrible” to deal with. That is hearsay. Third hand at that.

But the HSBA, contrary to your insinuations, solicited opinions from its members, passed the essence of them on to Leonard in advance of their interview with her and gave her a chance to respond. It happened, admittedly, behind closed doors, but the HSBA had committed to their confidential procedures years before this nomination ever came up. And, I would argue, they have a good rationale for that confidentiality.

Because of the confidentiality, you say you have not seen the evidence that Leonard is not qualified. Can reasonable people disagree about the proper level of confidentiality appropriate to the process? Or is it necessary for you to ignore the growing anecdotal evidence in order to cling to your cynical projections as to the motives of the HSBA and Senators.

The harshest thing I said about the LGBT critics going after Say was that they “are not ready for prime time.” I said their TACTICS were counter-productive and “STOOPID.” I did not impugn their integrity or their ethics.

You are attached to your self-description as “hopelessly idealistic.” I have disputed this with you before. Your comments do not inspire “idealism” in your readers. I think an idealist would assume people are trying to do the best they can under difficult circumstances. I guess that doesn’t apply to “politicians”? There is a comfortable niche in the public discussion for a grumpy old curmudgeon. Heck, it’s almost a Jungian archetype. Resist its lure. Move towards the idealism you like to THINK you embody.

You have accused me of allowing my bias against Lingle to cloud my perception of what has just happened. I admit I don’t like Lingle. I don’t trust Lingle. But where in any of my comments did I attribute her behavior in the Leonard appointment to malicious motives? At bottom, I believe she picked Leonard over Rectkenwald partly because she thinks Leonard would be less likely to vote with the remaining Democrats. And partly for the practical reason of not wanting to have to go through a second confirmation hearing on appointing Recktenwald’s replacement. She made her played based upon these factors but held a very weak hand. It also appears to me that she either did not attempt to win support for Leonard in advance or was tone-deaf to early hints that Leonard would have a hard time being confirmed. Instead orf reconsidering, she said “Damn the torpedoes”and launched a PR offensive on those who disagreed.

I sincerely share your distaste for “star chamber” proceedings. But after reading the HSBA’s longstanding procedures, I believe they have honestly tried to strike a balance between confidentiality and fairness to the nominee. If they did indeed, raise the concerns with Leonard prior to the interview and give her an opportunity to respond behind closed doors, I cannot see fault in their actions. But I guess that just makes me a jerk and a “partisan hack.”

Kolea, if this chicken process was used to torpedo someone like Dan Foley, you’d be screaming bloody murder. I’m just arguing for a process that could be viewed as fair whether one agreed with the political outcome or not. That’s idealistic enough for me. If not for you, that’s cool.

lingle is shrewd and very cunning.
What she did was choose someone she knew others
would reject. What she really did was manipulate
others to think this is what she wanted but she actually wanted the opposite. she wanted Recktenwald in the first place but knew opposition would oppose her and so she did the opposite. Majority went in her favor in the second choice. she got what she wanted and made it look like she was actually against it. Contradiction worked in her favor this time.

In her speech announcing Recktenwald as nominee, she had a smirk to her smile like she was laughing at others and that yes, I fooled them attitude.
lingle is shrewd but it can also be her downfall.
Some people can see through her, but not being heard it falls to those who speak the loudest.

Silence was golden and she went into her office, closed the door and YELLED, YES, I FOOLED THE MAJORITY. THEY ARE NOT AS SMART AS I AM. YES!
Fooled some but not all.